Purchase Agreement
Copy
Of
Pu~e..H-~Sg ,f\l:>rt.~B"A~ iJT
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made as of April
, 2006 (the "Effective Date"), between
COOK PROPERTIES-CHANHASSEN, LLC, a Minnesota limited liability company ("Cook");
NORSK ENTERPRISES, INC., a Minnesota corporation ("Norsk"); and HENRY CORNELIUS
("Buyer"). Collectively, Cook and Norsk are referred to herein as "Seller".
In consideration of the mutual promises made in this Agreement, Seller and Buyer agree
as follows:
1.) Sale of Property. Seller shall sell to Buyer, and Buyer shall buy from Seller, the
following property (collectively, the "Property"):
(a) Real Property. The real property located in Carver County, Minnesota, legally
described on Exhibit l(a) attached hereto (the "Land"), having a street address of 60 Lake
Drive East, Chanhassen (the "City"), together with (i) all buildings, structures and other
improvements constructed or located on the Land, if any (the "Improvements") and
(ii) any easements appurtenant to the land (collectively the "Real Property");
(b) Personal Property. None;
(c) Permits. Seller's interest in any freely transferable approvals, permits and licenses
benefiting solely the Real Property (the "Permits");
(d) Warranties. Seller's interests in any freely transferable warranties benefiting the
Real Property regarding the acquisition, use, operation, management, or maintenance of
the Real Property (the "Warranties");
(e) Customer List. A digital copy ofNorsk's customer list pertaining to Norsk's
business on the Real Property (the "Customer List"); and
(t) Noncomoete. A noncompete agreement pursuant to which Norsk and its
shareholders agree not to own or operate a Competing Business within a radius ofthree
(3) miles from the Property or within the boundaries of Chanhassen, Minnesota (as said
boundaries are established on the Effective Date) for a period of five (5) years after the
Closing Date (as defined in Section 6, below) (the "Noncompete"). As used above,
"Competing Business" means an auto body repair business that provides the same
services as a typical "ABRA Auto Body" business as of the Effective Date.
Notwithstanding the foregoing, in the event that Norsk's business located at 8108 Eden
Road, Eden Prairie, Minnesota is within three (3) miles of the Property, the Noncompete
shall not prohibit or otherwise affect the right ofNorsk and/or any of its shareholders to
operate a Competing Business at said Eden Prairie location.
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2.) Purchase Price and Manner ofPavment. The total purchase price ("Purchase
Price") to be paid by Buyer to Seller for the Property shall beNine Hundred Thousand and
no/IOO Dollars ($900,000.00) and shall be payable as follows:
(a) Twenty-five Thousand and no/lOO Dollars ($25,000.00) as earnest money (the
"Earnest Money"), which Earnest Money shall be held by First American Title Insurance
Company (the "Escrow Agent") in accordance with an Escrow Agreement among Seller,
Buyer, and the Escrow Agent in the form attached hereto as Exhibit 2(a); and
(b) The balance to be paid at Closing (as defined in Section 6 hereof) by wire transfer
of U.S. Federal Funds to be received in the trust account of the Escrow Agent on or
before the time of the Closing.
3.) Conditions. The obligations of Buyer under this Agreement are conditioned upon
satisfaction or waiver by Buyer of each ofthe following by the respective dates in:licated:
(a) Representations and Warranties. The representations and warranties of Seller
contained in this Agreement will be true in all material respects now and on the Closing
Date as if made on the Closing Date, and Seller shall have delivered to Buyer at Closing
(as defined in Section 4 hereof) a certificate dated the Closing Date, signed by an
authorized representative of Seller, certifying that such representations and warranties are
true in all material respects as ofthe Closing Date (the "Bring-down Certificate").
(b) Performance of Seller's Obligations. Seller shall have performed all of the
material obligations required to be performed by Seller under this Agreement
(c) Inspections and Testing. Buyer shall have determined, within ninety (90) days
after the Effective Date (the "Contingency Date"), that it is satisfied with the results of
and matters disclosed by soil tests, engineering inspections, hazardous waste and
environmental reviews, code and other legal compliance analyses and other tests and
inspections and evaluations of the Property, any or all of which shall be obtained at
Buyer's sole cost and expense.
(d) City Approvals. On or before the Contingency Date, Buyer shall have obtained all
City approvals (other than building permits) necessary in order to use the Property as an
auto body repair facility ("Buyer's Intended Use") and to make certain additional
improvements to the Property.
( e) Franchisor Approval. On or before the Contingency Date, Buyer shall have
received approval from ABRA's corporate franchisor to locate an ABRA auto body repair
facility on the property.
Buyer shall use its best efforts to satisfy the contingency described in Sections 3( c), (d),
and (e) prior to the Contingency Date. If Buyer has exercised such best efforts and any condition
set forth in this Section 3 has not been satisfied or waived by Buyer before its respective date,
then Buyer may terminate this Agreement at any time on or before such date by notice to Seller
and to the Escrow Agent. Upon receipt of such notice from Buyer and written confirmation from
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Seller, which Seller shall not unreasonably withhold, the Escrow Agent shall promptly return the
Earnest Money to Buyer in accordance with the provisions of the Escrow Agreement. Upon such
return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement,
except for the covenants made in Section 5(a) hereof, which shall survive termination of this
Agreement, whether such termination is effected by Seller or Buyer (the "Surviving Covenants");
however, Seller shall have no obligation to return the Eamest Money until (i) Buyer executes and
delivers a purchase agreement cancellation instrument evidencing the termination of this
Agreement and certifying that Buyer has paid any and an amounts required to be paid in
connection with any and all Tests (as defined in Section 5), if the failure to pay the same may
subject Seller or the Property to any liability or liens, and Buyer provides Seller with lien waivers
for the same; (ii) Buyer has delivered to Seller true and complete copies of all reports and other
written materials pertaining to its Tests; and (iii) Buyer restores the Property to the condition it
was in prior to performing any such Tests. Seller and Buyer specifically state and acknowledge
that Buyer shall have the unilateral right to waive any condition benefiting Buyer by notice to
Seller. If no such termination notice is timely delivered to Seller, the foregoing contingencies
shall be deemed satisfied and waived by Buyer.
4.) Title Matters. Title examination shall be conducted as follows:
(a) Title Commitment. Seller shall, within fifteen (15) days after the date of this
Agreement (subject to delays beyond Seller's control), furnish the following to Buyer:
(1) Title Insurance Commitment. A commitment ("Title Commitment") for
an AL T A Owner's Policy of Title Insurance committing to insure title to
the Real Property in Buyer, subject only to the Permitted Encumbrnnces
(as defined in Section 4(c), below), in the amount of the Purchase Price
and issued by First American Title Insurance Company (the "Title
Insurer") with a current effective date. The Title Commitment shall
include copies of all matters described in Schedule B thereof that will
remain encumbrances after the Closing; and
(2) Existing Survey. A copy of the most current survey of the Property in
Seller's possession, if any.
(b) Survey. Buyer shall have the right, at Buyer's cost and expense, to cause the Real
Property to be surveyed by a registered land surveyor properly licerned to practice in the
state where the Real Property is located in accordance with AL T A guidelines and such
other requirements as desired by Buyer (the "Survey"). Collectively, the Title
Commitment and the Survey are sometimes referred to in this Agreement as the "Title
Evidence." Buyer shall promptly deliver copies of the Survey (and any revisions thereof)
to Seller and Seller's counsel.
( c) Buyer's Obi ections. Within the earlier of (i) ten (10) days after receiving the last
item ofthe Title Evidence, or (ii) forty-five (45) days after the Effective Date, Buyer shall
notify Seller of any objections ("Objections") to any encumbrances disclosed by the Title
Evidence that will cause title to be unmarketable or have a material adverse effect on
Buyer's use ofthe Property for Buyer's Intended Use; however, Buyer shall not object to
3.
any matters listed as "Permitted Encumbrances" on Exhibit 4(c) hereto (the "Permitted
Encumbrances"). Buyer's failure to make Objections within such time period will
constitute a waiver of Buyer's right to make Objections. Any matter disclosed by the
Title Evidence and not objected to by Buyer shall also be a Permitted Encumbrance
hereunder. Seller will have sixty (60) days after receipt of the Objections (the "Cure
Period") to use good faith efforts to cure the Objections, during which the Closing will be
postponed as necessary; provided, however, Seller shall have no obligation to attempt to
cure any matters listed as "Known Encumbrances" on Exhibit 4(c) hereto. Seller shall be
under no obligation to incur costs or expenses in excess of $5,000.00 in the aggregate to
cure any Objections. If the Objections are not cured or insured over by the Title Insurer
within the Cure Period, Buyer will have the option to do either of the following by notice
to Seller and to the Escrow Agent:
(1) Terminate this Agreement within three (3) days after the expiration ofthe
Cure Period. Upon receipt of such notice from Buyer, the Escrow Agent
shall promptly return the refundable portion of the Earnest Money, if any,
to Buyer in accordance with the provisions ofthe Escrow Agreement.
Upon such return, neither Seller nor Buyer shall have any further rights or
obligations under this Agreement, except for the Surviving Covenants; or
(2) Waive the Objections and close the transaction contemplated by this
Agreement as if such Objections had not been made, in which case the
Objections shall be additional Permitted Encumbrances.
5.) Additional Covenants. Buyer and Seller covenant and agree as follows:
(a) Upon not less than two (2) business days' prior written notice, Seller shall allow
Buyer and Buyer's agents access to the Real Property without charge and at all reasonable
times for the purpose of investigation and testing. Buyer shall pay all costs and expenses
of all investigation, examination, surveying, testing and inspection of the Property
performed by or on behalf of Buyer, Buyer's agents, attorneys, representatives, heirs,
assigns, employees and/or contractors (hereinafter collectively referred to as the "Tests").
Buyer shall not interfere with the use or enjoyment of the Property by any occupant
thereof. Buyer shall not allow any lien to be placed against the Property in connection
with any of Buyer's Tests. Buyer shall fully repair and restore any damage to the
Property caused by, arising out of, or occurring during or in connection with the
performance of the Tests, and Buyer shall return the Property to substantially the same
condition as existed prior to the Tests and/or any other entry onto the Property, as
determined in the reasonable judgment of Seller. Buyer hereby agrees, at its sole cost and
expense, to unconditionally indemnify, defend and hold Seller harmless against any loss,
liability, damage, expenses, claims, penalties, fines, injunctions, suits, proceedings,
disbursements or expenses (including, without limitation, attorneys' fees and
disbursements and court costs) (collectively, the "Liabilities") caused by, arising out of or
occurring as a result of Buyer's entry onto the Property and/or conducting or performing
any of the Tests, which obligation of Buyer shall survive the termination of this
Agreement.
4.
(b) Within ten (10) days after the Effective Date, Seller shall deliver to Buyer copies
of all surveys and environmental reports relating to the Property, if and to the extent in
Seller's possession, as well as a copy of the current real estate tax statement for the
Property. Seller makes no representations or warranties regarding the accuracy of any
such documents or materials.
(c) During the period from the Effective Date to the Closing or termination of this
Agreement, Seller shall not execute any leases, casements or other agreements relating to
the Property that arc not terminable on or before the Closing Date.
(d) On or before the Closing Date, Seller shall remove Seller's personal property,
trade fixtures and equipment from the Property, including, but not limited to, Seller's
inventory and hoists. Seller shall have the right, but not the obligation, to remove signage
and fixtures for signage.
6.) Closing. The closing of the purchase and sale contemplated by this Agreement
(the "Closing") shall occur on August 4, 2006 (the "Closing Date"). The Closing shall take place
at 10:00 a.m. local time at the office ofthe Seller's counselor at such other place as may be
acceptable to Seller and Buyer. Seller shall deliver possession of the Property to Buyer on the
Possession Date (as hereinafter defined), subject to any applicable Permitted Encumbrances. As
used herein, the "Possession Date" shall mean the date that is two (2) weeks after the actual
Closing Date.
(a) Seller's Closing Documents. On the Closing Date, Seller shall execute and/or
deliver to Buyer the following (collectively, the "Seller's Closing Documents"):
(1) Deed. A Limited Warranty Deed from Cook, in the customary form,
conveying title to the Real Property to Buyer, and subject to the Permitted
Encumbrances;
(2) Bring-down Certificate. The Bring-down Certificate;
(3) Seller's Affidavit. An Affidavit by Cook indicating that on the Closing
Date there are no outstanding, unsatisfied judgments, tax liens, or
bankruptcies against or involving Seller or the Real Property; that there
has been no skill, labor, or material furnished to the Real Property by Cook
for which payment has not been made and for which mechanics' liens
could be filed; and that Cook has no knowledge of any unrecorded
interests in the Real Property;
(4) Original Documents. Original copies of the Permits and the Warranties, if
any, and ifin Seller's possession;
(5) FIRPTA Affidavit. A nonforeign affidavit from Cook, properly executed
and in recordable form, containing such information as is required by IRC
Section 1445(b)(2) and its regulations;
5.
(6) Lease Termination. Evidence that the lease of the Real Property by and
between Cook and N orsk has been terminated by not later than the
Possession Date (the "Lease Termination");
(7) Customer List. A digital copy of the Customer List from Norsk; and
(8) Noncompete. The Noncompete (as defined in Section 1, above).
(b) Buyer's Closing Documents. On the Closing Date, Buyer will execute and/or
deliver to Seller the following (collectively, "Buyer's Closing Documents"):
(1) Purchase Price. The cash payment toward the Purchase Price to be paid as
required by Section 2(b) hereof;
(2) Title Documents. Such affidavits of Buyer or other documents as may be
reasonably required by the Title Insurer in order to record the applicable
Seller's Closing Documents.
7.) Prorations. Seller and Buyer shall make the following prorations and allocations
of taxes, assessments, rents, costs, and other expenses at Closing:
(a) Title Insurance and Closing Fee. Cook shall pay the costs of the Title
Commitment. Cook and Buyer will each pay one-half of any reasonable and customary
closing fee or charge imposed by the Title Insurer or its designated closing agent. Buyer
shall pay the title insurance premium.
(b) Deed Tax. Cook shall pay all state deed tax due on the deed to be delivered by
Seller under this Agreement.
(c) Real Estate Taxes and Special Assessments. Seller shall pay all general real estate
taxes ("Taxes") payable in the calendar year prior to the Closing and all prior years.
Seller and Buyer shall prorate the Taxes and installments of special assessments
("Assessments") due and payable in the calendar year of the Closing as of the Closing
Date based upon the calendar year. Seller shall pay, on or before the Closing Date, the
balance of all Assessments levied against the Real Property as of the Effective Date.
Seller shall be responsible for payment of any deferred Taxes or deferred Assessments,
such as "green acres" taxes. Buyer shall assume as of the Closing Date any other
Assessments levied, pending or constituting a lien against the Property as of the Closing
Date. If the amount of such Taxes cannot be determined on the Closing Date, Seller shall
deposit with the Title Insurer, from the Purchase Price, an amount equal to its share of the
most current estimate of such Taxes, assuming for estimating purposes that the Real
Property will be fully assessed. The Title Insurer shall hold such deposit in escrow and
shall pay all interest earnings on such deposit to Seller. The Title Insurer shall retain such
deposit to pay Seller's share ofthe actual Taxes payable in the calendar year of the
Closing. When the amount of such Taxes is determined and announced by the
appropriate public authorities, the Title Insurer shall promptly pay Seller's prorated share
thereof to Buyer and shall pay any excess of such deposit over to Seller. Ifthe escrowed
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funds are insufficient to pay Seller's prorated share, Seller shall promptly pay any
deficiency to Buyer.
(d) Recording Costs. Cook will pay the cost of recording all documents necessary to
place record title in Cook in the condition required by this Agreement. Buyer will pay the
cost of recording all other documents.
( e) Utilities and Other Costs. Seller and Buyer shall prorate all utilities serving the
Property as of the Closing Date, and shall notify all utilities serving the Property of the
change in ownership, directing future billings to Buyer. Seller and Buyer shall prorate all
other operating costs of the Property as of the Closing Date.
(t) Attorneys' Fees. Each of Seller and Buyer shall pay its own attorneys' fees,
except that a party defaulting under this Agreement or any of its respective Closing
Documents shall pay the reasonable attorneys' fees and court costs incurred by the
nondefaulting party to enforce its rights regarding such default
8.) Representations, Warranties and Indemnity by Seller. Seller represents and
warrants to Buyer as follows:
(a) Organization: Authority. Both Seller entities are duly organized, in good standing
under the laws of the State of Minnesota, duly qualified to transact business in the State
of Minnesota, and have the requisite power and authority to execute and perform this
Agreement and those Seller's Closing Documents to be signed by each ofthem; such
documents have been duly authorized by all necessary action on the part of Seller and at
the Closing shall have been duly executed and delivered; such execution, delivery, and
performance by Seller of such documents do not conflict with or result in a violation of
Seller's organizational documents, any judgment, order, or decree of any court or arbiter
to which either Seller is a party.
(b) Environmental Laws. Except as may otherwise be set forth or referred to in
Exhibit 8(b ), to the best of Seller's knowledge: (i) no toxic or hazardous substances or
wastes, pollutants or contaminants (including, without limitation, asbestos, urea
formaldehyde, the group or organic compounds known as polychlorinated biphenyls,
petroleum products including gasoline, fuel oil, crude oil and various constituents of such
products, have been generated, treated, stored, released or disposed of, or otherwise
placed, deposited in or located on the Real Property in violation of applicable laws; and
(ii) no above ground or underground tanks are located in or about the Real Property or
have been located under, in or about the Real Property and have subsequently been
removed or filled.
(c) Wells and Septic. Seller knows of no wells on the Real Property or of any
"individual sewage treatment system" within the meaning of Minn. Stat. Section 115.55
on or serving the Real Property. Sewage generated at the Property goes to a facility
permitted by the Minnesota Pollution Control Agency.
7.
(d) FIRPT A. Seller is not a "foreign person," "foreign partnership," "foreign trust" or
"foreign estate," as those terms are defined in Section 1445 of the Internal Revenue Code.
(e) Proceedings. Seller has not received any notice of, nor is Seller aware of, any
action, litigation, investigation, condemnation, violation, or proceeding of any kind by or
from any person or entity or by or from any federal, state, or local government entity
against Sellcr or related to any portion of the Property.
Notwithstanding the foregoing, the repr~sentations and warranties made above shall be deemed
to have been made only by Cook to the extent they relate to Cook or the Real Property and shall
be deemed to have been made only by Norsk to the extent they pertain to Norsk. As used in this
Agreement, "to the best of Seller's knowledge" and similar statements shall mean and be limited
to the actual knowledge and conscious awareness of Brian Cook, in his capacity as Chief
Manager of Cook and Secretaryrrreasurer of Norsk, without investigation or inquiry. The
representations and warranties set forth in this Section 8 shall not merge with the deed but shall
survive and be enforceable after the Closing for a period of six (6) months thereafter. Any claim
or cause of action must be filed before the expiration of said six (6) month period or shall be
barred. Subject to the foregoing limitation, Seller shall indemnify Buyer for actual, direct
damages incurred by Buyer caused by a breach by Seller of any of the representations or
warranties set forth in this Section 8.
9.) Representations, Warranties and Indemnity by Buyer. Buyer represents and
warrants to Seller that if Buyer is a business entity, Buyer is duly organized and in good standing
under the laws of the State of Minnesota; that Buyer is duly qualified to transact business in the
State of Minnesota; that Buyer has the power and authority to execute this Agreement and any
Buyer's Closing Documents signed by it; that all such documents have been duly authorized by
all necessary action on the part of Buyer and at the Closing shall have been duly executed and
delivered; and that the execution, delivery, and performance by Buyer of such documents do not
conflict with or violate Buyer's organizational documents. Buyer further represents and warrants
to Seller that the execution, delivery and performance by Buyer of such documents do not
conflict with or violate any judgment, order or decree of any court or arbiter or any agreement by
which Buyer is bound. Buyer will indemnify Seller and its successors and assigns against, and
will hold Seller and its successors and assigns harmless from, any expenses or damages,
including reasonable attorneys' fees, that Seller incurs because of the breach of any of the above
representations and warranties, whether such breach is discovered before or after Closing.
10.) Condemnation. If, prior to the Closing Date, any governmental entity commences
any eminent domain proceedings ("Proceedings") against all or any part of the Property, Seller
shall immediately give notice to Buyer of such fact, and, at Buyer's option (to be exercised by
notice to Seller and the Escrow Agent within ten (10) days after Seller's notice), this Agreement
shall terminate, in which event the Escrow Agent shall return the Earnest Money to Buyer in
accordance with the provisions of the Escrow Agreement. Upon such return, neither Seller nor
Buyer shall have any further rights or obligations under this Agreement, except for the Surviving
Covenants. If Buyer does not give such notice within said ten (10) days, then there shall be no
reduction in the Purchase Price, and Seller shall assign to Buyer at the Closing all of Seller's
right, title, and interest in and to any award made or to be made in the Proceedings. Prior to the
8.
Closing Date, Seller shall not designate counsel, appear in, or otherwise act with respect to the
Proceedings without notifying Buyer.
11.) Damage. If, prior to the Closing Date, all or any part of the Property is
substantially damaged by fire or other casualty, Buyer shall have the right and option to terminate
this Agreement (to be exercised by notice to Seller and the Escrow Agent within ten (10) days
after Buyer is notified of or becomes aware ofthe damage) in which case this Agreement shall
terminate and the Escrow Agent shall return the Earnest Money to Buyer in accordance with the
provisions of the Escrow Agreement. Upon such return, neither Seller nor Buyer shall have any
further rights or obligations under this Agreement, except for the Surviving Covenants. If Buyer
does not elect to terminate this Agreement within said ten (10) days despite such damage, or if
the Property is damaged but not substantially, then there shall be no reduction in the Purchase
Price, and Seller shall assign to Buyer at the Closing all of Seller's right, title, and interest in and
to the proceeds of all insurance related to such damage, to the extent not applied by Seller toward
restoration and repair. For purposes of this Section 11, the words "substantially damaged" mean
damage that would cost (as so determined) $50,000.00 or more to repair.
12.) Broker's Commission. Seller and Buyer represent and warrant to each other that
they have not employed, used the services of or otherwise dealt with any brokers, finders or the
like in connection with this transaction. Each shall indemnify the other and hold the other
harmless against all claims, damages, costs, or expenses of or for any fees or commissions
resulting from their actions or agreements regarding the execution or performance of this
Agreement, and shall pay all costs of defending any legal action brought against the other party to
recover any such fees or commissions, including reasonable attorneys' fees.
13.) Assignment. Buyer may not assign this Agreement without the prior written
consent of Seller, which consent shall not be unreasonably withheld or delayed. Any attempted
assignment without Seller's prior written consent shall be void, at Seller's option. No
assignment by Buyer shall release or relieve Buyer from any obligations or liabilities under this
Agreement. Buyer shall immediately notify Seller of any assignment or purported assignmmt
and shall include with such notice a true and complete copy of the assignment document.
Notwithstanding anything in this Section or Agreement to the contrary, Seller shall not withhold
its consent to Buyer assigning this Agreement at the Closing to an entity controlled by original
Buyer, where "control" means a greater than fifty percent (50%) equity and voting interest and
Buyer provides to Sellcr rcasonable evidence of control.
14.) Survival. Except as otherwise expressly set forth herein, the terms of this
Agreement will survive and be enforceable after the Closing for a period of six (6) months
thereafter. The Surviving Covenants (as defined in Section 3) are not subject to the foregoing
limitation.
15.) Notices. Any notice required or permitted to be given hereunder will be properly
given in accordance with this Agreement, if it is mailed, by United States certified mail, return
receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized,
reputable overnight courier, properly addressed as follows:
9.
If to Buyer:
Henry Cornelius
Henry Cornelius and Associates
6322 Timber Trail
Edina, Minnesota 55439
With a copy to:
Jerome J. Simons, Esq.
Messerli & Kramer P A
1800 Fifth Street Tower
150 South 5th Street
Minneapolis, Minnesota 55402
Telephone: (612) 672 3726
Facsimile: (612) 672-3777
If to Seller:
Cook Properties/N orsk Enterprises
8640 Lyndale A venue South
Bloomington, Minnesota 55420
Attention: Brian Cook
With a copy to:
Larkin Hoffman Da1y & Lindgren Ltd.
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
Attention: Gary A. Renneke
Notice shall be effective, and the time for response to any notice by the other party shall
commence to run, one (1) business day after any such deposit. Either Seller or Buyer may
change its address for the service of notice by giving notice of such change to the other party, in
any manner above specified, ten (10) days prior to the effective date of such change.
16.) Captions. The Section and paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are not to be
considered in interpreting this Agreement.
17.) Entire Agreement~ Modification. This written Agreement constitutes the
complete agreement between Seller and Buyer and supersedes any prior oral or written
agreements between them regarding the Property. There are no verbal agreements that change
this Agreement, and no amendment of any of its terms will be effective unless in writing and
executed by both Seller and Buyer.
18.) Binding Effect. This Agreement binds and benefits the Seller and Buyer and their
respective successors and permitted assigns.
19.) Controlling Law. This Agreement has been made under, and will be interpreted
and controlled by, the laws of the State of Minnesota.
20.) Remedies. Time is ofthe essence ofthis Agreement. If Buyer defaults in
performance of its obligations under this Agreement, Seller shall have the right to terminate this
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Agreement in the manner provided by Minn. Stat. Sec. 559.21 and to obtain the Earnest Money
as liquidated damages. If Seller defaults in performance of its obligations under this Agreement
and continues in default after thirty (30) days' notice from Buyer, Buyer may terminate this
Agreement and obtain a refund of the Earnest Money or seek specific performance ofthis
Agreement, as Buyer's sole and exclusive remedies. Any other provision herein to the contrary
notwithstanding, Seller shall have the right to any and all rights and remedies available under this
Agreement, at law and/or in equity with respect to Buyer's performance of the Surviving
Covenants and with respect to any Liabilities.
21.) Buyer's Due Diligence. Buyer acknowledges that Buyer has had and/or will have
the opportunity to inspect, inquire about, investigate and examine the Property and matters
regarding the Property and that Buyer has or will obtain and/or perform, at Buyer's sole cost and
expense, all such inspections, assessments, inquiries, investigations, examinations, studies, tests
and reports that Buyer deems appropriate or otherwise desires (collectively referred to herein as
"Due Diligence"). Seller and Buyer agree that Buyer will accept possession of the Property in its
AS-IS condition, WITH ALL F AUL TS. Except for the warranties and representations explicitly
set forth in this Agreement or Seller's Closing Documents, such sale shall be without any other
representation or warranty of any kind, express or implied, and Seller, for Seller, Seller's agents,
attorneys, representatives, successors and assigns does hereby disclaim and renounce any other
representation or warranty.
22.) Exhibits. All Exhibits referred to in and attached to this Agreement are
incorporated in and made a part of this Agreement.
23.) Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and together which shall constitute one and the same
Agreement.
24.) Review by Counsel. Buyer and Seller acknowledge that they have each been
represented by counsel and that their respective counsel have reviewed and approved this
Agreement, and the parties hereby agree that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
25.) Effect of Submission. The submission by Buyer to Seller or Seller to Buyerof
this Agreement in an unsigned form shall be deemed to be a submission solely for consideration
and not for acceptance and execution. Such submission shall have no binding force or effect, and
shall not confer any rights or impose any obligations, irrespective of any reliance thereon, change
of position or partial performance. The submission by Seller or Buyer of this Agreement for
execution shall similarly have no binding force or effect unless and until both parties shall have
executed this Agreement and a counterpart hereof shall have been delivered to the other party
hereto.
26.) 1031 Exchange. Seller and Buyer agree to cooperate with each other in effecting
for the benefit of either party a delayed like-kind exchange of real property pursuant to
Section 1031 of the United States Internal Revenue Code and similar provisions of applicable
state law; provided that (i) neither party shall be allowed to delay the closing hereunder and
11.
(ii) neither party shall be obligated to execute any note, contract, deed or other document not
otherwise expressly provided for in this Agreement providing for any personal liability, nor
shall either party be obligated to take title to any property other than the Property as otherwise
contemplated in this Agreement or incur additional expense for the benefit of the other party.
Each party shall indemnify and hold the other hannless against any liability which arises or is
claimed to have arisen on account of any exchange proceeding that is initiated on behalf of the
indemnifying party.
27.) Allocation of Purchase Price. Seller and Buyer shall use the following allocation
of the Purchase Price among the following kinds of the Property in reporting and accounting for
the sale and purchase of the Property:
(a) For the Real Property, the amount of $750,000.00, payable to Cook;
(b) For the Lease Termination, the Customer List and the Noncompete, the amount of
$150,000.00, payable to Norsk; and
( c) F or the Permits and Warranties, if any, no part of the Purchase Price is being
allocated.
Seller and Buyer have executed this Agreement as ofthe date set forth on page 1 hereof.
SELLER:
COOK PROPERTIES-CHANHASSEN,
LLC
Date:
,2006
By:
Its:
NORSK ENTERPRISES, INC.
Date:
,2006
By:
Its:
BUYER:
Date:
, 2006
Henry Cornelius
1067427.1
12.
EXHIBIT l(a)
to
SALE AND PURCHASE AGREEMENT
between
COOK PROPERTIES-CHANHASSEN, LLC and NORSK ENTERPRISES, INC., SELLER
and
HENRY CORNELIUS, BUYER
Legal description of Land:
Lot 1, Block 1 Chan haven Plaza 3rd Addition, according to the plat thereof on file or of
record in the office of the County Recorder, Carver County, Minnesota.
Together with the benefits of an easement for roadway purposes created within that
certain Declaration of Roadway Easement dated July 8, 1993, recorded November 4,
1993, as Document No. 157558.
EXHIBIT 2(a)
to
SALE AND PURCHASE AGREEMENT
between
COOK PROPERTIES-CHANHASSEN, LLC and NORSK ENTERPRISES, INC., SELLER
and
HENRY CORNELIUS, BUYER
Form of Escrow Agreement:
ESCROW AGREEMENT
1.) The undersigned, as parties to the purchase and sale of the real estate in the Sale
and Purchase Agreement, attached hereto, have this day deposited with First American Title
Insurance Company ("Title") as escrow agent, Twenty-five Thousand and nolI 00 Dollars
($25,000.00) earnest money called for in said Agreement and an escrow fee of -0-, payable to
Title. All of said earnest money shall be held in an FDIC insured interest bearing account with
interest accruing to the benefit of Buyer, unless Seller receives the earnest money as a result of
the cancellation of the Sale and Purchase Agreement, in which event the interest shall also be
disbursed to the Seller.
2.) Upon notification by both parties in writing that the transaction has closed, Title
will pay said earnest money over to Seller. If the Sale and Purchase Agreement is cancelled or
the transaction has otherwise been terminated and will not close, Title will distribute the earnest
money to Buyer and/or Seller as required by the terms and provisions ofthe Sale and Purchase
Agreement. Upon cancellation of the Sale and Purchase Agreement as a result of the uncured
default of Buyer, Title will pay the earnest money and interest thereon to Seller.
3.) The sole duties of Title shall be those described herein, and Title shall be under no
obligation to determine whether the other parties hereto are complying with any requirements of
law or the terms and conditions of any other agreements among said parties. Title may
conclusively rely upon and shall be protected in acting upon any notice, consent, order or other
document believed by it to be genuine and to have been signed or presented by the proper party
or parties, consistent with reasonable due diligence on Title's part. Title may consult the advice
of counsel with respect to any issue concerning the interpretation of its duties hereunder. Buyer
and Seller hereby acknowledge such fact and indemnify and hold harmless Title from any action
taken by it in good faith in reliance thereon. Title shall have no duty of liability to verify any
such notice, consent, order or other document, and its sole responsibility shall be to act as
expressly set forth in this Agreement. Title shall be under no obligation to institute or defend any
action, suit or proceeding in connection with this Agreement. If any dispute arises with respect
to the disbursement of any monies, Title may continue to hold the same or commence an action
in interpleader and in connection therewith remit the same to a court of competent jurisdiction
pending resolution of such dispute, and the parties hereto hereby indemnify and hold harmless
Title for any action taken by it in good faith in the execution of its duties hereunder.
4.) Title hereby agrees to act as escrow agent and hold earnest money in accordance
with the terms of this Escrow Agreement and said Sale and Purchase Agreement.
SELLER:
COOK PROPERTIES-CHANHASSEN,
LLC
Date:
,2006
By:
Its:
Tax I.D. Number
NORSK ENTERPRISES, INC.
Date:
, 2006
By:
Its:
BUYER:
Date:
,2006
Henry Cornelius
Tax I.D. Number
FIRST AMERICAN TITLE INSURANCE COMPANY, hereby acknowledges receipt of
the foregoing escrow deposit and agrees to hold the same as above specified.
Dated this _ day of April, 2006
TITLE:
FIRST AMERICAN TITLE INSURANCE
COMPANY
Address:
1900 Midwest Plaza West
801 Nicollet Mall
Minneapolis, Minnesota 55402
By:
Its:
2.
EXHIBIT 4( c)
to
SALE AND PURCHASE AGREEMENT
between
COOK PROPERTIES-CHANHASSEN, LLC and NORSK ENTERPRISES, INC., SELLER
and
HENRY CORNELIUS, BUYER
Permitted Encumbrances:
1.)
2.)
3.)
payable.
Building and zoning laws, ordinances, state and federal laws and regulations;
Reservation of mineral rights by the State of Minnesota, if any; and
The lien of real estate taxes and special assessments that are not yet due and
Known Encumbrances:
I.) Platted drainage and utility easements.
2.) Wetlands as shown on the recorded plat ofChanhaven 3rd Addition.
3.) Easement filed in Book 91 of Deeds, page 204 as Document No. 01300.
4.) Declaration of Restrictive Covenant filed as Document No. 57413, amended by
instrument filed as Document No. 116665.
5.) Easement filed as Document No. 93093.
6.) Development Contract filed as Document No. 116032.
7.) Conservation Easement filed as Document No. 116033.
8.) Conservation Easement filed as Document No. 116034.
9.) Development Contract filed as Document No. 123344.
10.) Drainage Easement filed as Document No. 123350.
11.) Wetland Conservation and Drainage Easement filed as Document No. 123347.
12.) Water Main and Sanitary Sewer Easement filed as Document No. 123349.
13.) Limitation of Access to State Trunk Highway No.5 pursuant to document filed as
Document No. 126146.
14.) Declaration of Roadway Easement filed as Document No. 157558.
15.) Conditional Use Permit filed as Document No. 205782.
2.
EXHIBIT 8(b)
to
SALE AND PURCHASE AGREEMENT
between
COOK PROPERTIES-CHANHASSEN, LLC and NORSK ENTERPRISES, INC., SELLER
and
HENRY CORNELIUS, BUYER
Environmental Disclosures:
1.) Any matters disclosed or referred to in (i) that certain Phase I Environmental Site
Assessment prepared by ATC Associates, Inc., dated June 10, 1998; and/or (ii) that certain
Transaction Screen prepared by DPRA Environmental, dated November 30, 1999.
2.) Above-ground new oil and used oil tanks.
1067427.1